Guest Opinion: After 322 years, justice is served

Friday

Aug 8, 2014 at 5:26 PM

Congratulations to Gov. Deval Patrick for signing the “Trial Court Bill” (House Bill 4123) into law and protecting the interests of Massachusetts citizens. I applaud the governor for his vision for finally, after 25 years, ensuring that justice is served.

Frederic N. Halström

Congratulations to Gov. Deval Patrick for signing the “Trial Court Bill” (House Bill 4123) into law and protecting the interests of Massachusetts citizens. I applaud the governor for his vision for finally, after 25 years, ensuring that justice is served.

Now, after 322 years of Massachusetts judicial experience, lawyers can question prospective jurors and can tell the jurors how much a case is worth in money damages.

In 1988, under Massachuetts Academy of Trial Attorneys sponsorship and through our lobbyist, Ed Smith, a bill passed the “Great and General Court” regarding jury voir dire. The bill got to Gov. Michael Dukakis’ desk, where it was vetoed, but Dukakis suggested that the legislature instead pass a bill, which he would sign, setting forth an experiment in three counties. It died.

In 1990-ish, the Legislature again passed a bill regarding the use of numbers in final argument and jury voir dire. That bill was sponsored by the MATA’s friend Judiciary Chair representative Sal DiMasi. It was vigorously advocated by MATA’s then general counsel, Ed Smith. I had filed it. It was based on a then-recently enacted Connecticut statute. It got to the desk of Gov. William Weld.

Unfortunately, Weld vetoed that bill.

At the time, there were opposing op-ed pieces in the Boston Bar Journal and a follow-up piece published in Massachusetts Lawyers Weekly. The Boston Bar Journal articles were by then Honorable Robert Steadman set forth what a disaster voir dire would be, and myself representing the counterpoint. A follow-up piece written by Dick Dahl was published in Massachusetts Lawyers Weekly.

The Legislature, for the third time, passed a bill for numbers and voir dire and Patrick has signed it. Such a bill in the past did not have the support of the district attorneys because in the past it contained a provision for jury voir dire in criminal cases. Attorney conducted voir dire is the rule in 38 states. I have done it in New Hampshire and the U.S.D.C. in Atlanta, Georgia (GM defect case).

According to the July 24, Boston Globe article, “Changes in civil lawsuit procedures called fairness issue,” 39 other states allow the plaintiffs to value damages for pain and suffering. Colleen Quinn, Changes in civil lawsuit procedures called fairness issue.

Further, a recent study by the U.S. Department of Justice of the 75 largest counties showed that Massachusetts had the lowest plaintiff win rate of any case, including personal injury, in the nation. Essex, Middlesex, Suffolk, and Worcester Counties were all included in the latest study, and the defendants win rate was 80-90 percent. By comparison, Palm Beach County in Florida has a plaintiff win rate that exceeds 70 percent.

By way of further history, the Supreme Court of the state of Connecticut in late 1980s ruled that the use of numbers was somehow against the Connecticut Constitution. The Connecticut Legislature within the year passed a bill allowing numbers and it was signed by the governor immediately. Then the Supreme Court of the state of Connecticut found the bill to be constitutional.

Also New Hampshire, which 25 years ago, never had attorney conducted voir dire or the use of numbers for non-economic damages, adopted both by statute ten years ago and it has worked there since.

Everyone always asks “How much are you suing for?” and “How much will settle this claim?” Now lawyers can give the number to the jury. Common sense, but it has taken hundreds of years (322 for the SJC) for Massachusetts to allow such information to be shared with the jury.

MATA, its allies and staff deserve great credit for getting this bill passed both bodies of the “Great and General Court.” Special recognition goes to Attorneys Tim Kelleher, Neil Sugarman and Marty Healy of MBA. We thank an enlightened governor for doing the right thing and signing the bill. Our 25 year wait is over. The public’s 322 year wait is over; after all it is the 21st century.

Frederic N. Halström is past president, Massachuetts Academy of Trial Attorneys 1996-97; former member, Massachusetts Bar Association Board of Governors; and a former member of AAJ/ATLA Board of Governors.